DNA-testing bill aims to improve death penalty investigations

AUSTIN — Attorney General Greg Abbott on Tuesday joined Sen. Rodney Ellis in support of a bill that would make Texas the first state in the nation to require DNA testing on all biological crime scene evidence before going to trial in death penalty cases.

Such tests could eliminate legal battles by condemned prisoners years after they've been convicted, as well as spare some innocently accused a wait on death row, Abbott and Ellis said.

“There is no reason why all of these items of evidence couldn't be tested up front,” Abbott said.

Testing would be performed by the state, at taxpayer expense.

If passed, Senate Bill 1292 would apply only to cases occurring after Sept. 1, the date the legislation would take effect.

Texas leads the nation in the number of executions. DNA testing has played a crucial role in exonerating some notable Texas defendants, such as Michael Morton, who was freed in 2011 after 25 years in prison after another man was linked to items at the crime scene.

Though Morton's case wasn't a capital murder trial, Ellis said all testing should be provided by the state before the case goes to trial in cases in which the death penalty is sought.

The benefits of testing before going to trial are twofold, he said: those wrongfully accused are cleared earlier and police can refocus on other suspects.

“When we get it wrong, not only is an innocent person's freedom taken away, but a truly guilty person is free and emboldened to commit other crimes,” said Ellis, D-Houston.

Testing prior to trial is not expected to create a significant delay in getting cases to court nor will it create a backlog for crime labs, Abbott said.

If Ellis' bill becomes law, Texas would be the first state to require pretrial testing of all materials, death penalty experts said.

“This bill is a good idea, but the devil is in the details,” said Stephen Saloom, policy director for the Innocence Project. “Any probative DNA evidence at a crime scene should be tested. That should be done, and I don't know why we need a law to codify that, but if we do, then alright.”

In many cases, death penalty challenges do not center on the science of DNA testing, but whether testing certain items is necessary.

Provided Ellis' bill doesn't hamper efforts to raise legitimate concerns later about the validity of testing, lapses in collecting evidence and other trial matters, the bill could be beneficial, said Ronald Tabak, a New York lawyer and a board member of the Death Penalty Information Center. Better scientific information sooner can allow for improved investigations.

Asked if Texas ever had executed an innocent person, Abbott said it had not. Ellis, though, wavered.